Monday, October 12, 2015

Prosecutorial misconduct in California: an entire DA's office disqualified; and now a statute to encourage more accountability for misconduct

Long time readers of this blog know that I have often commented on the fact that courts do not seem to take prosecutorial misconduct too seriously, and do not do enough to discourage it. (Click on the label "prosecutors" on the right hand side panel and scroll down for many posts on the subject).

That may change in California, where prosecutors who deliberately withhold evidence from
defense attorneys may face harsher punishment under a new law recently signed into law by Gov.
Jerry Brown. Go here for more on the story.

The statute bolsters a judge's ability to disqualify a
prosecutor or an entire prosecuting attorney's office. The law also requires the court to report violations
to the state bar, which licenses attorneys.
"The bill seems like a step in the right direction," Alex Kozinski,
former chief judge of the Ninth Circuit Court of Appeals, told The Huffington Post. "It seems to give a great deal of discretion to
trial judges, so its effectiveness will depend on the degree to which
those judges are willing to exercise that authority."

But that's the key. The law itself will be ineffective unless judges are willing to exercise their authority. In fact, I don't think the law changes much, since it does not give judges any more authority than they already had. Yet, if all it does is encourage more judges to take action, then the law is, in fact, a step forward.

The law seems to be a reaction to an incident back in March when a state judge removed a full DA's office from the county’s highest-profile murder prosecution in years because
misconduct had tainted the entire office’s handling of the case. He
reassigned the case to the California attorney general, Kamala Harris, a
ruling her office is appealing. Go here for a New York Times article with more information on that story.